A. I live at 1050 Hunsaker Canyon Road, Lafayette, California.
Q. And how long have you lived there?
A. Since 1998.
Q. And as of October of last year, who did you live with?
A. My wife, my three children; Esther Fielding, her son Scott Dyleski; and Hazel McClure and Michael Sikkema, they are husband and wife, and their two children.
Q. Do you have a telephone at your home?
A. Yes.
Q. More than one?
A. Yes.
Q. What are your -- well, does one of the telephone numbers at your home begin with the prefix 284?
A. Yes --
Q. What's --
A. -- at least one.
Q. Okay. What's the last four numbers?
A. "0142" are the last four digits of my phone, the phone that I pay for. There were two other phones at our residence --
Q. Okay.
A. -- as well as and ISDN line.
Q. Where is your phone?
A. My phone is located -- well, there are actually multiple phones. At that time, there was a hardware phone in the master bedroom. There were also two cordless phones also with my number and they were located, the base is located, one base is located in the kitchen and another in the living room; but they being cordless could have been anywhere.
Q. Including outside?
A. Yes.
Q. I want to show you what's been marked as People's Exhibit 26B, records of the --
THE COURT: Are you approaching?
MR. JEWETT: Yes.
THE COURT: Uh-huh.
MR. JEWETT: May I, Your Honor?
THE COURT: Yeah.
MR. JEWETT: Q. -- Specialty Lights Company and ask you if you recognize any telephone numbers on this exhibit.
A. (Witness reviewing exhibit.) Yes, I do.
Q. How many?
A. Two.
Q. And are they that same 284-0142 number?
A. Yes, they are.
Q. That's your telephone number; is that right?
A. Yes, it is.
Q. I assume you know why we have asked you to come here this afternoon generally.
A. To testify, I believe.
Q. Okay. I want to ask you about October 15 of last year. What I am going to do initially is ask -- I'm going to refrain from asking you about time estimates, but try to focus on what you did and then I'm going to come back to questions of time. Okay?
A. Okay.
Q. Were you at home on the morning of October 15?
A. Yes, I was.
Q. And did you see Scott Dyleski actually enter your home anytime that morning?
A. No.
Q. Do you clearly recall the times -- and by "the times," I mean "the occasions" -- that you did see him?
A. No.
Q. Do you clearly recall a time when your wife Kim was on the couch?
A. Yes, I do.
Q. Can you tell us what you recall about that occasion?
A. Do you want just that occasion or prior to that occasion?
Q. Well, let's start with just that occasion. Then I will ask you what you were doing --
A. Okay.
Q. -- just before that.
A. I exited, I came out of the master bedroom and I said something to -- I was trying to get people to prepare to leave and I may have said something. I'm not certain of what I said, but I believe I implied that if people -- and when I say "people," I'm talking about my kids and my wife -- if they did not, you know, if they weren't ready to go that they might be behind, and my wife reacted strongly to that.
Q. How?
A. She said, "You just cool your jets, mister. I have got two more papers to correct after this one. I have been wanting to do these for ...." And she continued talking and I don't recall what she said, I wasn't listening.
Q. Okay.
Was it your perception at that moment that your wife thought that you were being pushy?
A. Definitely.
Q. And when you say that you weren't listening after she said that, did you feel like her response was sharper than you thought it should have been?
A. I would have understood her response had this been, say, the third time I had said something. But since this was the very first time I just thought it was a little, I thought she reacted strongly.
Q. Okay. Now, you have given a number of statements to the -- certainly one statement to the police about what time it was that various things were happening; is that true?
A. Yes, that's true.
Q. Do you have a clear recollection, at some point after this exchange with your wife, of leaving with your wife and children to go someplace?
A. Yes, I do.
Q. Where did you go?
A. We went to the Spirit Store, which I believe is in Concord.
Q. And who drove?
A. My wife drove.
Q. And did you make any stops between your home and the Spirit Store?
A. Stoplights? Yes.
Q. Okay. Fair enough. Did you make any stops at any other stores?
A. No.
Q. Gas stations, anything like that?
A. No.
Q. Thank you. And did you and your wife and kids then shop at the Spirit Store?
A. We did.
Q. Okay. Now, at some point did you give an estimate of how much time you were at the Spirit Store?
A. Yes, I did.
Q. And I'm talking about sometime last October, yes?
A. Yes. I said yeah.
Q. And last October, did you give an estimate of time of how long you were at the Spirit Store of a little bit more than an hour?
A. Yes, I did.
MS. LEONIDA: Objection. Calls for hearsay.
THE COURT: It does, right now, Mr. Jewett.
MR. JEWETT: Okay.
THE COURT: Objection sustained. You need to back up a little bit.
MR. JEWETT: Well, okay.
Q. Actually, what I am going to do, sir, is I'm going to push forward. Were you contacted by a defense investigator last week? That's my question.
A. Yes, I was. Oh, I'm sorry, hang on.
Q. Or was it --
A. No. Okay. By "contact," do you mean did I speak with the investigator?
Q. Did you speak with a defense investigator --
A. Yes.
Q. -- on July 31, a week ago?
A. Approximately.
Q. Monday?
A. I don't -- let me try and think of what the date was. And is that important?
Q. Well, let's see if you can remember what the date was.
THE COURT: Sir, there's a calendar to your left, if that helps.
MR. JEWETT: Q. I'd ask actually -
A. That's okay. I'm not certain if it was a Monday or a Tuesday. And Monday, I believe, is the 31st, and Tuesday would have been the 1st. So I'm not certain.
Q. Okay.
A. I -- I'm not certain.
Q. During that contact, was this by telephone or in person?
A. This is in person.
Q. He came to your home?
A. Yes.
Q. Was his name Ed Stein?
A. He -- according to him it is.
Q. Okay. And by the way, with in a day or two of this visit, did you call me?
A. Yes, I did.
Q. Did you leave me about four different numbers where I could call you back?
A. Yes, I did.
Q. And during this contact with Mr. Stein at your home, did Mr. Stein tell you what I said during my opening statement in this trial?
A. I don't know that he identified it as being part of the opening statement, but he did tell me something that he said he attributed to you.
Q. Okay. And did that subject matter that he attributed to me have to do with this question of timing regarding Saturday, October 15?
A. Yes, it did.
Q. And during the course of your conversations with Mr. Stein, did you make -- did you tell him anything about your estimate of time that you were at the Spirit Store?
A. Yes, I did.
Q. What did you tell him?
MS. LEONIDA: Objection. Calls for hearsay.
THE COURT: Overruled.
MR. JEWETT: The objection being overruled means you can answer, Mr. Curiel.
THE WITNESS: I understand. Can you restate the question?
MR. JEWETT: Q. Did you indicate to Mr. Stein anything about how you wanted to change or you had a change regarding your time estimate of how long you were at the Spirit Store?
A. Yes, I did.
Q. And what was that change?
A. That I had been there longer than I had first estimated --
Q. And --
A. -- or had told the investigators on October 20.
Q. Okay. And, by the way, did you tell Mr. Stein that you wanted to change an estimate that you told me or that you wanted to change an estimate that you told the investigators who you talked to on October 20?
A. I don't recall, but I believe it would have been -- I don't recall.
Q. Have you and I talked about this change in your estimate of time, until you called me last week to tell me about it?
A. No, I had not.
Q. So what was the change that you told Mr. Stein last week?
A. I believe that I had been there longer than I said earlier.
Q. You actually gave him an amount of time that you had been there earlier, didn't you?
A. Yeah.
Q. What amount of time did you give him?
A. An hour and 40 minutes.
Q. Now, what was your estimate of time that you were at the Spirit Store when you were estimating time back in October?
A. I said a little over an hour, I believe.
Q. Okay. Up until -- well, let me ask you this. Did you tell anybody that you wanted to revise your estimate of time that you made in October, did you tell anybody in November that you wanted to change that estimate?
A. No.
Q. Or December?
A. No.
Q. Or January?
A. No.
Q. Or February?
A. In February, February would have been when I realized for the first time that I was in error. And I don't know if I actually told anyone. I'm not certain if I --
Q. So February was the first time that you realized that you were in error?
A. Yes.
Q. You testified in the preliminary hearing in this case; is that true?
A. Yes, I did.
Q. And that was in was that in February?
A. Yes, it was.
Q. Was this conversation that you had with Mr. Stein last week, was this the first time that you met with Mr. Stein?
A. No, it was not.
Q. Did you have a lengthy conversation with Mr. Stein at some point between -- well, at some point in the year 2006?
A. Uh-uh. I'm not absolutely certain which year. I can say that I am certain I had a lengthy conversation with him prior to January 27.
Q. Prior to January 27?
A. Prior to January 27.
Q. And why does January 27 stick out for you?
A. I believe January 27 is the date that my brother found some papers.
Q. You were there that day?
A. I was there that day.
Q. So you talked to Mr. Stein at some length before that happened?
A. Before that, yes.
Q. And how long did you talk to Mr. Stein on this day before January 27?
A. I believe it was over three hours.
Q. Over three hours?
A. Over three hours.
Q. Was defense counsel there during that conversation?
A. No, they were not.
Q. Okay. And then it was sometime in February that you realized that you wanted to revise your time estimate; is that right?
A. That's correct.
Q. Did you tell anybody about wanting to -- I understand you said that that's when you realized it in February. Did you tell anybody, in February, that you wanted to revise this time estimate in February?
A. I don't believe so.
Q. Or in March?
A. Not to my recollection.
Q. Or in April?
A. Not that I recall.
Q. May?
A. No.
Q. June?
A. No.
Q. So, July of this year was the first time that you actually told anybody that you wanted to change your time estimate at the Spirit Store from a little over an hour to an hour and 40 minutes; is that right?
A. That's correct. That's to the best of my recollection.
Q. Now, you did go to the Spirit Store?
A. Yes, I did.
Q. You recall that?
A. Yes, I do.
Q. Do you recall how many purchases either you or members of your family made at the Spirit Store?
A. Oh, I made one purchase.
Q. And how about your wife, did she make any purchases?
A. She did.
Q. How many?
A. I don't know. I wasn't with her when she made them.
Q. Do you recall whether she made her purchases before -- or maybe you don't know because you weren't with her, you weren't with her -- do you know whether you made your purchase before or after she made her purchase?
A. I know that I made my purchase prior to her purchase. I'm certain of that.
Q. You are certain of it. Why are you certain of that?
A. I waited for -- prior to me checking out, I was waiting for her near the front of the store. I eventually -- there was a line. I got in line, there was about six people in line. I got in line, I was actually expecting her to join me and the line was processed before she joined me. And so I let the next person in line go ahead of me. At that point, there were two people in line still behind me and I went to the back of the, beyond the line so if anyone else came they could go in front of me. And the two people that were in line were checked out. And at that point a cashier made eye contact with me and I figured, "What the hell," and I checked out. And then --
Q. So --
A. -- and then waited for my wife at the entrance.
Q. And correct me if I am wrong, but did you not say a few moments ago that you did not actually see your wife at the time she made her purchase?
A. That's correct.
Q. So if I understand what you are saying correctly, when you were in line to make your purchase you were basically letting people go in front of you until your wife appeared?
A. I let one person go in front of me --
Q. Okay.
A. -- from the line. And then I went to the back of the line with a separation between me and the two people so if anyone came forward they would not line up behind me, but no one came.
Q. But your purpose -- I'm sorry. Go ahead.
A. But -- I'm sorry.
Q. Is it true that your purpose in doing that was because you were waiting for your wife of going to the back of the line?
A. Yes.
Q. Okay. Now you have already said that you didn't see your wife in line; right?
A. That's correct.
Q. So how do you know that your wife didn't actually make a purchase before you did, when you were shopping for whatever it is that you were shopping for?
A. I don't. And it is possible. I don't think -- I don't believe she did, but it's possible.
Q. Have you talked?
A. I did. As you know, I got financial records from my bank.
Q. And I'm going to be getting to that in just a second.
A. Okay. Now, it doesn't prove that she didn't purchase something. She could have purchased something by check prior to my checking out, but I don't believe she did and it would be unlikely. It's possible, though.
Q. Okay. You just made reference to a record that you checked with your bank and got credit card records for your purchases on the 15th --
MS. LEONIDA: Objection. Leading.
THE COURT: Overruled.
MR. JEWETT: Q. -- is that true?
A. It was, I believe, for the month of October.
Q. Okay.
A. Yes, which included the purchases in October, and that would be a Visa.
Q. And then in February of this year, did you e-mail to me a short note explaining what was below the note, which was your purchases for October 15?
MS. LEONIDA: Objection. Calls for hearsay.
THE COURT: Overruled at this point.
MR. JEWETT: Q. Did you send me an e-mail with that information?
A. I believe I did.
Q. Showing you what's been marked as People's Exhibit 42, does that appear to be that e-mail, a copy of it?
A. It appears to be truncated. There should be more transactions than this, shouldn't there?
Q. Well, I'm asking you, sir.
A. Okay.
Q. Are you saying that you sent me something other than what's there?
A. If this is what I sent, then it looks like I have edited what was sent to me or truncated it. But, yeah, this does look like what I have sent.
Q. Well, okay. I want to explore that a little bit.
A. Okay. So I'm just saying that it may have been edited because there were other transactions that were sent to me, I believe.
Q. Right. Did you send me those transactions, the transactions for either before October 15 or after October 15?
MS. LEONIDA: Objection. Calls for hearsay.
THE COURT: No. Overruled.
THE WITNESS: No. I don't know.
MR. JEWETT: Q. You don't know or you didn't?
A. No, I didn't.
Q. So who truncated the information to limit it --
A. I would have.
THE COURT: Excuse me, sir. Let him finish the questions about you answer.
MR. JEWETT: Q. So who truncated the information on e-mails so the only thing that we received was October 15?
A. I would have done that.
Q. You say, "I would have done that." Does that mean you don't specifically recall doing it, but that's something you would have done?
A. Yes.
Q. Do you remember what you bought at the Spirit Store?
A. Yes.
Q. What?
A. A skull of what appears to believe a primate with large incisors on the lower jaw.
Q. Okay. Do you remember how much it was?
A. Approximately?
Q. Sure.
A. $22.
Q. And is this truncated version of your credit card history a true and accurate copy of the credit card history that you accessed to see what your charges were for that day?
A. Yes.
Q. Okay. Now, you said something about -- well, what time do you think you made your purchase of the skull?
A. Five to ten minutes, prior to my wife checking out for the final time at the Spirit Store.
Q. I assume since you sent this to me, are you aware that this receipt shows a time?
MS. LEONIDA: Objection. Hearsay.
THE COURT: Sustained.
MR. JEWETT: Q. What time does the receipt that you accessed show that you purchased your skull?
MS. LEONIDA: Objection. Calls for hearsay.
THE COURT: Sustained.
MR. JEWETT: Q. Do you know what time of the day it was, do you recall what time of the day it was that you purchased the skull?
A. No, I do not.
Q. Would it refresh your memory to look at the exhibit I just put in front of you?
A. It would not. It would not answer definitively when I purchased the skull.
Q. Okay. Putting aside the question of whether it would answer it definitively. Would it assist you in remembering approximately when you purchased the skull?
A. Oh, I --
Q. Why is it so difficult, Mr. Curiel?
A. -- I believe it would.
Q. Okay. And so would you please look at that?
A. (Witness reviewing exhibit.)
Q. Have you had a chance to look at it?
A. Yeah.
Q. Okay. Can I have it back?
A. (Witness complied.)
Q. Now, does that refresh your memory about what time it was that you bought the skull?
A. Approximately?
Q. Yes.
A. Yes.
Q. Okay. Approximately what time?
A. I believe at approximately 12:25 to 12:30.
7 Q. Mr. Curiel, the record that you -- have you reviewed a record indicating a transaction time of 12:44 p.m., for $21.64?
MS. LEONIDA: Objection. Leading.
THE COURT: Sustained. The question is stricken. The jury is admonished to disregard it.
MR. JEWETT: Q. Did you make a purchase at 12:44 p.m., at the Spirit Store, for $21.64?
A. I don't believe I did.
Q. Why not?
A. Because I purchased -- I made my purchase prior to my wife's purchase.
Q. So --
A. And I believe that -- I believe the time on there for my wife's purchase accurately reflects the time that she made her purchase at the store.
Q. So what time do you believe that your wife made her purchase?
MS. LEONIDA: Objection. Foundation.
THE COURT: Sustained. Counsel, let me have you approach.
(Bench conference, unreported.)
MR. JEWETT: Q. Mr. Curiel --
A. Yes, sir.
Q. -- can we assume that your recollections of the time that you bought the skeleton head is based on your belief that you bought the skeleton head before your wife made her purchase?
A. Yes. Absolutely.
Q. After you went to the Spirit Store, where did you go?
A. I went to Fry's Electronics in Concord.
Q. How long were you there?
A. Ah, under 50 minutes.
Q. Fifteen or 50?
A. Fifty, "5", "0," under 50.
Q. And then where did you go?
A. We went to -- I believe it's Los Primos Market.
Q. Okay. And how long were you there?
A. I'm not certain. I forget when I left. It was -- I checked my pager, but I don't recall the exact time. But we left the parking lot about 2:20, we ate, we purchased food there to eat and ate it in the parking lot.
Q. You think that you left there about 2:20?
A. Yes.
Q. All right.
So the purchases would have been before then?
A. Yes.
Q. And where did you go?
A. We went to Mount Diablo State Park.
Q. And how long were you there?
A. We were there -- I'm not certain how long we were there; but we departed, I know that, at 16 minutes to closing time, which was 6:00 o'clock, we were in the car leaving, and then we stopped and watched a coyote. This is on the road out. It takes awhile to leave. So it kind of depends on how you define having actually left. I mean, it's a big park.
Q. One minute to 6:00?
A. Yeah.
Q. And then after that, you stopped and you watched a coyote?
A. Yeah, until 12 minutes to 6:00. And then at that point we got, we stopped on the road out and we got back in the car and we departed; but you are in the park for several miles after that, I believe. So I'm not certain what time we actually left the park.
Q. But it's your recollection that -- so the 16 minutes to 6:00 was when you started watching the coyote?
A. Yeah, when we stopped and got out of the car. Yeah.
Q. And then 12 minutes to 6:00 is when you stopped watching the coyote and kept going?
A. Yes.
Q. Then where did you go?
A. Do you want what I recall or what I had told the --
Q. Right now, I want what you recall, sir.
A. Okay.
Q. I want your memory.
A. We went to an assisted care facility, I believe, where my grandmother was recuperating from a broken hip.
Q. How long did it take you to get from Mount Diablo Park to where your grandmother was recuperating?
A. I don't know, but I would guesstimate 20 to 30 minutes maybe.
Q. And how long did you visit with her?
A. Probably -- I'm not certain. Probably less than an hour. I'm not certain.
Q. Okay. Your best estimate is less than an hour?
A. Probably -- yeah, I'd say less than an hour.
Q. And then where did you go?
A. We went home.
Q. And how long did it take you to get home from the assisted living center?
A. I would guess -- and I'd just be guesstimating -- about 20 minutes.
Q. What time do you think you got home, sir?
A. I believe I got home about 7:20 p.m.
Q. Do you think it took about 20 minutes to a half of hour to drive from Mount Diablo to the assisted living center, do you think it took you something less than an hour to visit and another, what?
A. Twenty minutes.
Q. Twenty minutes to half an hour to get home. And you think you got home at what time?
A. 7:20 p.m.
Q. 7:20. Okay. First of all, do you remember being asked these questions by the sheriff's office in the early morning hours of October 20 --
A. I --
Q. -- what time you got home?
A. Yes, I do.
Q. Do you remember what you told them?
A. I believe I told them 8:20.
Q. And then you were asked similar questions at the time of the preliminary hearing in this case, right --
A. I don't know.
Q. -- regarding what time you got home? Do you remember testifying at the preliminary hearing on the question of what time you got home Saturday night?
A. I don't recall. Could you refresh my memory, is that allowed?
Q. Yes. Let me just see if I can find it.
A. I may have said 8:20.
MS. LEONIDA: Move to strike. No question pending.
THE COURT: Sustained. The comment is stricken. The jury is admonished to disregard.
MR. JEWETT: Q. So it's your recollection that you -- and I may need a moment to find that -- that you testified at the preliminary hearing consistent with what you told the police?
A. I don't recall what I testified -- what I said at the preliminary hearing. I don't recall what I said at the preliminary hearing.
Q. As you sit here now, you think it was about 7:20?
A. Yes, I do.
Q. Can you offer any explanation for why you might have told the police in October that it was 8:20, but now you're at 7:20?
A. Well, at that point in time, I was mistaken. I make mistakes. The reason if you are asking why I believe it was 7:20 is because when I thought back about the conversation I had with Hazel and my wife of when I returned home, there was something she said which when thinking back I am definite on what she said and that was about the time.
Q. And when she returned home?
A. When I returned home, when we returned home.
Q. From where?
A. From the assisted care facility.
Q. Okay. So when was it that you reflected back on what she may have said when you returned home from the assisted care facility that caused you to revise your time estimate from 8:20 to 7:20?
A. Probably after the preliminary hearing. It would have been after the preliminary hearing.
Q. So after the preliminary hearing, you thought back to something that Kim had said to you?
A. No, not Kim.
Q. Kim or Hazel?
A. Hazel. Yes, sir.
Q. And what Hazel had said to you when you got home that Saturday evening, that's what caused you to revise that time estimate?
A. Yes. Yes, it is.
Q. So would it be fair to say, sir, that you at least, in this instance, have been revising your initial time estimates based upon things that other people have told you?
A. No. It would be based on my recollection actually going back and thinking logically through what I recall.
Q. Okay. By the way, Mr. Curiel, it's not my intention to embarrass you here; however, during that interview that you had with the sheriff's office, on October 20, this was in the very early morning hours, was it not?
A. Yes, it was.
Q. We're talking 2:00, 3:00, 4:00, or 5:00 o'clock in the morning?
A. I believe between 2:30 and 4:00, about 4:45.
Q. Would it be fair to say that you were extremely distraught emotionally during that interview?
A. Yes, it would.
Q. At one point early in the interview, as questions began did you actually fall out of your chair to the floor?
A. No, I did not. I felt lightheaded. I felt as though I may pass out, but I did not fall.
Q. Okay.
A. In my -- okay. My recollection is that I went down to the floor intentionally to try and get more blood to my head to avoid passing out.
Q. You did that rather quickly, did you not?
A. I don't recall.
MS. LEONIDA: Objection. Leading.
THE COURT: Overruled.
THE WITNESS: I believe it's on videotape.
MR. JEWETT: Q. You don't recall?
THE COURT: Excuse me.
MR. JEWETT: Q. And then you say "it's on the videotape." Were you aware at the time that that interview was being videotaped?
A. No, I was not.
Q. But you are aware of it now?
A. Yes, I am.
Q. Did the interview then proceed for in excess of an hour with you actually laying on the ground facedown?
A. I wasn't timing the -- I didn't check the time. I can't be certain how long I was on the ground; but that would be reasonable, that sounds reasonable.
Q. And then at some point, did the deputies ask you to sit up?
A. Yes, they did ask me to get up.
Q. And was the balance of the interview basically with you actually sitting on the ground with your back up against the wall?
A. No, I don't believe so. I believe my recollection is that it was -- it's possible.
Q. What are you about to say, Mr. Curiel, your recollection is what?
A. Well, I thought it's -- I thought I was in the chair.
Q. You were --
A. I could be wrong.
Q. You certainly were in the chair at the beginning of the interview; right?
A. Ah, yes.
Q. Would it be fair to say that your life, particularly between Sunday, October 16, and Wednesday, October 19, was an extremely stressful and difficult time in your life?
A. It became -- could you restate the beginning of that period?
Q. Yeah. Would it be fair to say that between Sunday, October 16, and Wednesday, October 19, was a particularly difficult time in your wife?
A. Absolutely.
Q. Why?
A. Well, there was -- on Sunday evening, we were confronted with information about credit card fraud, which had been committed from within my house.
Q. And what did you do with that information?
A. Well, I looked into it. The information I had investigated, I tried to determine how it had happened.
Q. And how did you do that?
A. I started, what I had was a credit card report.
Q. Was this a report that was received from --
A. It was a copy -- I'm sorry. Go ahead. Please go ahead.
Q. -- a copy of a report received from Karen Schneider earlier that day?
A. Yes, it was.
Q. So what did you do in an effort to try and investigate the contents of that report?
A. The first thing I did was I confirmed that the IP address in the report was indeed mine.
Q. And --
A. The external IP address was mine, which established in my mind that it had been committed from my house. Then I believe I inspected the, the demarcation from my house for the telecommunications, it's the junction boxes where communication lines come in. I was looking for tampering just to see if there was a possibility that someone had compromised my data connection externally and there was no sign of that. I then inspected the computers in the house, the computers that were in our house, the active computers. I have a lot of computers that are not functional, I didn't inspect any of them. Would you like me to go on?
Q. What do you do for a living?
A. I work for -- I'm a consultant for a large health care interest.
Q. Kaiser?
A. Yes.
Q. And what do you do for them?
A. I do failure analysis and time critical support.
Q. Failure of what?
A. Applications, medical applications, including ambulatory and renew capturing of inpatients.
Q. And all of this pertains to the operation of what?
A. For providing services to members. It is an effort to realize the paperless office. So --
Q. What --
A. So it --
Q. -- do you mean by "the paperless office"?
A. I mean, that all transactions or information will be handled electronically and a part of your medical record, as well as the revenue/cashier portion, et cetera.
Q. And it would be captured electronically in what kind of machine?
A. On servers. It's a very diverse system. There are literally -- there are thousands of servers working together.
Q. Okay.
A. Servers.
Q. Servers are a part of what kind of machine?
A. A computer.
Q. Thank you. That's what I was looking for. You are an expert in computers, are you not?
A. You could say that, but I think that term is overused.
Q. What, expert?
A. Yes.
Q. So you are using some knowledge that you have?
MS. LEONIDA: Objection. Leading.
THE COURT: Sustained.
MR. JEWETT: Q. Are you using knowledge that you have gained in your life to examine these computers in your home?
A. Oh, absolutely.
Q. And is one of the computers that you examined Scott's computer?
A. Yes, it was.
Q. And did you have to do something special to gain access to some area inside Scott's computer?
A. Could you clarify? You said access and --
Q. Maybe I'm not using the right word. Did you use a program?
A. I typed in a program at the command line. Yes, I did.
Q. Did you actually -- when you say you typed it in, are you talking about typing it into Scott's computer?
A. Yes.
Q. So there's a command line that enables you?
A. You can.
Q. Explain that to us, please.
A. Okay. It has a graphical interface you can get to the command line by bringing up a terminal if you have loaded the terminal application. I load the operation system off Scott's computer, I upgraded it and I loaded the developer tools at that time. I started with the terminal. The thing I was looking at on Scott's computer was the browser history had been removed, but the browser cache files had not. The cache files are in a binary form; they are not easily readable.
MS. LEONIDA: Objection. Narrative.
THE COURT: Sustained.
MR. JEWETT: Q. So when you determined that the cache files had not been deleted, what did you do?
A. I wrote a program to examine them, looking for text stream which matched that of the Web site that the credit card report, the credit card fraud had been attempted at.
Q. And did you find anything that matched?
A. Yes, I did.
Q. And after you found that, did you talk to Scott?
A. Yes, I did.
Q. And tell us about that, please.
A. I'm sorry. I'm trying to recollect that part. Give me a moment.
THE COURT: Counsel, why don't you approach while he's recollecting.
MR. JEWETT: Yeah.
(Bench conference, unreported.)
MR. JEWETT: Q. Mr. Curiel --
A. Yes, sir.
Q. -- have you had a chance to think about that?
A. Ah, yes. I don't have a clear recollection --
Q. Okay.
A. -- of that.
Q. Did you confront Scott after you found information on his computer --
A. Yes, I did.
Q. -- you know, about whether or not he's responsible for it?
A. Yes, I did.
Q. And how did he respond to that?
A. I don't recall his specific response, but I know for certain he denied any responsibility and he didn't have an explanation.
Q. Did that have and was that that same Sunday night?
A. This was that Sunday night.
Q. Do you remember where it was in your home that you confronted him with this information?
A. No, I don't.
Q. Who was there?
A. I believe that I would have been, my wife would have been, and Esther and Scott would have been.
Q. Okay.
A. Okay. I think -- I'm not certain. I'm not certain, but it may have been in the master bedroom at one point. And I'm not certain if it was that night, but I think it may have been in the master bedroom to try and confront him, not in the presence of the children, the other children in the hopes of making it easier on him.
Q. Okay. Putting aside the exact words that he spoke, do you have a clear recollection that he denied anything to do with the information you found?
A. Yes, yes. Yes, that's clear.
Q. The following day, Monday, did he continue to deny?
A. He did not change his story, but I don't know that I confronted him on that. And on Monday, there was an adult. Yeah, okay, I do recall. Sorry. I do recall part of the meeting on Sunday, yes. He --
Q. Sunday or Monday?
A. Sunday.
Q. Okay. Go ahead.
A. May I?
Q. Yeah.
A. He maintained he was at his girlfriend's house.
Q. When?
A. That evening.
Q. Which evening?
A. For the duration of Wednesday evening.
Q. Oh.
A. The question -- okay. It's coming back, now. Oh, okay. We tried to build a time line for Wednesday of what happened Wednesday and tried to determine who possibly could have done this, if Scott didn't do it. And there was -- it was difficult to come up with a viable scenario of someone doing it other than Scott. His system was password protected.
Q. Let me interrupt you just for a second. I'm going to let you continue along the same vein. But why were you looking at Wednesday night as the time that you were interested in for whether or not he placed those orders?
A. That was the night that the orders were attempted.
Q. According to the paperwork that you had received?
A. Yes.
Q. Okay. I'm sorry. So --
A. Well, no, minor technical. The date on the computer, I mean, on the report was actually Thursday. I mean, initially, I did. I haven't gone into detail in this, but initially --
MS. LEONIDA: Objection. Narrative.
THE WITNESS: -- I looked at his computer.
THE COURT: Sustained.
MR. JEWETT: Q. Okay. Let me interject with a question here. Okay. Did I understand you to say that you initially looked in his computer and saw a Thursday date?
A. I looked for a --
Q. That's --
A. -- Thursday date?
Q. Okay.
A. I found nothing on Thursday --
Q. Okay.
A. -- and I initialed my initial check.
Q. And why did you look for a Thursday date?
A. The times in the report were East Coast time.
Q. So you were looking for --
A. A Thursday.
Q. -- a Thursday?
A. Initially.
Q. And then did it dawn on you that maybe it wasn't Thursday, East Coast time; but Wednesday, West Coast time?
A. Yes.
Q. So did you then look --
A. Yes.
Q. -- on Scott's computer for Wednesday?
A. Yes.
THE COURT: Excuse me, sir. Let him finish the question.
MR. JEWETT: Q. Did you then look in Scott's computer for Wednesday?
A. Yes, I did.
Q. And was it at that time that you found information that matched to some degree at least this order, a copy of which you had received?
A. Yes, I did.
Q. And I think this all started because I was asking questions about Scott. And was there something that you wanted to say about your recollections of Scott on Wednesday or did I misread that?
A. At this point --
Q. Not sure?
A. -- I'm not certain about what I was about to say.
Q. Okay.
A. Okay.
Q. Mr. Curiel, I have to ask you a question, sir. Are you taking any medication?
A. No, I'm not.
Q. Okay. Now, I think I was asking you some questions, first of all, about Sunday night and then I was going to Monday, and then you started to say something about, oh, that's right, when I was looking at his computer on Sunday, I was looking at things that matched up with Wednesday. Is that refreshing your memory at all?
A. I was going to say that I had looked at his computer twice. The first time I looked for Thursday, and found no files at all on Thursday. I then returned the computer to him. And when it was after I realized that the date I should have been looking for was Wednesday. I then asked for the computer back. And at that point, I found the files, I found the files that matched with the times on the report.
Q. Now, maybe I just missed it, but I thought we kind of got off on this subject when I started asking you about Monday?
A. Yes.
Q. Okay.
A. Sorry. If you'd like to go back in detail about when we questioned him or confronted him --
Q. Yes.
A. -- Scott maintained that he was not at our house on Wednesday evening.
Q. Okay.
A. That Wednesday evening during the time that the computer fraud was attempted.
Q. Yes.
A. He maintained he was at his girlfriend's house. Now, one thing I was going to say was that on Monday, my wife informed me that Scott's girlfriend's father confirmed that Scott was at their house.
MS. LEONIDA: Objection. Hearsay, narrative.
THE COURT: Sustained.
MR. JEWETT: Okay.
THE COURT: The answer is stricken.
MR. JEWETT: Q. Let's put aside what Jena or Jena's father may have said and let me ask you this. Did you see Scott on Wednesday? A. Yes, I did.
Q. When?
A. Wednesday evening.
8 Q. About what time?
A. I believe about 8:00 o'clock, approximately 8:00 p.m.
Q. And what was he doing?
A. I asked for his help. I asked for everyone in the house to help.
Q. Did you --
A. I do not recall this on Sunday. This is something that I was not able to recall until a full week later when I realized it in trying to remember why I thought Scott had been there. And I recall that Thursday was the day the chippers came, which mean that Wednesday the day before the chippers came was my last chance to move all the brush that I had collected down to the point where the chippers would chip it. And in order to move that I would fill a large tarp with a few cubic yards of brush and it's much too big for one person to carry. You need as many people as I could get to assist me carrying that down. Scott was there and helped.
Q. Wednesday night?
A. Wednesday night.
Q. Okay. Let's go back to Monday.
A. Okay.
Q. Did you confront Scott at all on Monday?
A. No, I didn't. I'm sorry.
Q. How about on Tuesday, did you have any conversations with him about this?
A. Yes, I did.
Q. And at some point in your conversations with Scott on Tuesday, did you talk to him about the subject matter of DNA?
A. Yes, I did.
Q. And tell us about that, please.
A. The whole thing or just the section on DNA.
Q. Right now, when you say the whole thing --
A. The whole conversation?
Q. -- how did the conversation start?
A. I was working from home that day. Scott was -- I had become aware that Scott had lied about the --
MS. LEONIDA: Objection. Narrative, foundation.
THE COURT: It is going to go into a narrative. Mr. Jewett --
MR. JEWETT: Yes.
THE COURT: -- I want to stop.
MR. JEWETT: That's fine, Your Honor.
THE COURT: Okay. Let me have the jurors take their evening recess. We'll be in recess until 9:00 o'clock, everyone. You may step down, sir.
THE COURT: Okay. We are back on the record in the case of People versus Dyleski. All 16 jurors have returned.
DIRECT EXAMINATION (RESUMED)
MR. JEWETT: Q. Mr. Curiel, I think when we left off yesterday, I was just beginning to ask you questions about your conversations with Scott on Tuesday. Is that your recollection?
A. Yes.
Q. How many different occasions do you recall talking to Scott on Tuesday?
A. Once.
Q. Was that in the morning or the afternoon?
A. I believe it was initiated just shortly before noon and it may have extended past noon, but not significantly past noon.
Q. And was this the conversation -- well, where did this conversation take place?
A. This conversation took place in my residence, in the master bedroom, on the first floor.
Q. And who was present?
A. Myself, Scott Dyleski, Esther Fielding, and my wife Kimberly.
Q. And please describe your recollections of that conversation.
A. Do you want --
Q. How did it start?
A. It started he walked in the room and the rest of us were already in the room. He said, "Let me just say this: You are not going to believe anything I have to say, so why don't you just tell them I did it."
Q. And was that satisfactory to you?
A. No. I told them -- he also said, "That's what you want, isn't it?" And I said, "I replied that, no, if that's not the truth, then that's not what we want."
Q. So what happened then?
A. I believe I explained that we -- that the longer the regular investigation went on the more likely it was that the credit card issue would get involved. And I told them it behooved us to get to the truth before we went to the police.
Q. I'm sorry. Could you say that first part again? You told them the longer it went on, what?
A. The longer that the murder investigation dragged on the more likely it was that the credit card issue would get involved with that murder investigation. I don't have the precise words on that, but that was the gist of what I was explaining.
Q. And how did he respond to that?
A. Well, I went on and I explained -- and at that point there was no response. He seemed indifferent -- I mean, almost he seemed to be still, sort of not acknowledging and not accepting, although saying he was willing to accept the blame, but not admitting to it, to the credit card issue. I explained to him that I had not been aware that the address on the report was the Horowitz address. And I said, "Can you see how that -- can you see how this could be misrepresented or misconstrued by the press as being related to the murder?" And before I finished saying that he said, "Yes, yes, yes, yes," and he started pacing nervously.
Q. What happened then?
A. I'm not sure if there was any additional discussion; but I do recall that I said at a point, I told him, "Relax, you don't have anything to worry about." And he responded, "What do you mean?" And I said, "If there was a struggle, as Dan described, then it's virtually guaranteed that there will be DNA under her~-- excuse me~-- ah, there will be -- I'm sorry~-- excuse me~-- there will be DNA under her fingernails, there will be footprints and there will probably be hair." That's what I said.
Q. And how did he respond to that?
A. He didn't. There was, ah, questioning. Are you interested in the DNA part?
Q. I'm interested in everything that was said from beginning to end.
A. Okay. At this point, I believe my wife started asking him to try to reconstruct what he did and where he was on Saturday. And on Saturday morning, I believe she said it was vitally important that he recall everything he could about Saturday. And he had said he went for a walk to the waterfall. My wife asked him if there was anyone he passed, anyone he saw, and he could not recall. She specifically asked him were there any cars that passed. And at that point he could not initially, he could not recall anything. He then said there was -- he said, "Yes, there was a little white car and -- I'm sorry -- a little red car and a white car." He was asked -- and I'm not certain if it was Kim or Esther -- what direction the cars were going. He said, "Up the hill." I believe he was asked by Kim if this was going to the waterfall or coming back and he said, "It was coming back."
Q. Okay. So what happened then?
A. I'm out of sequence -- I'm sorry -- I'm out of sequence.
Q. Okay. Do you want to correct what you just said?
A. Yeah. Before these specific questions occurred he told me -- he said that he had spoken with the woman in the white car. And he then said that -- he said that she had pulled over as if to ask him a question. And --
Q. Did you or Kim or Esther respond to that?
A. Well, there was -- he continued and there was interaction, there was interactive discussion. He said that she had said something weird. I can't recall what it was. But he said, "She reached out and grabbed my arm." And I believe I said, "She grabbed your arm?"
Q. Like that?
A. Maybe a little more incredulous than that. He said, "Yes, hard enough to leave marks." And as he said that he put a finger in his sleeve and pulled his sleeve back as if to show me marks or to show marks. I wasn't sure about what he was talking about, you know, I didn't see, I didn't recognize the marks on his arm.
Q. Okay.
A. It was after this, you know, my wife prompted him, "Try to remember." He said that she said something weird. And he recollected on this and he said it was like, "You've got to believe," something like that. Now, this is the point where they were asking the specific questions. I asked him, "Which side of the road were you on?" And he said, "On the same side as our house." And then I asked him, "So you are telling me that an average height woman?" I think we established that she was an average height woman who reached across the passenger seat, out the window and grabbed your arm. And that, one, I thought I made it clear to him that this did not, my tone, I believe, conveyed that I did not find this credible.
Q. All right. Let me stop you just for a second there so we understand this. At the time that you said that, had he already said that he saw this red car and this white car heading up the hill, meaning in the direction of the Vitale residence?
A. Yes.
Q. And had he already said that at the time that this white car stopped, he was on your side of the street?
A. Yes, on the same side of the road as the house. Yes.
Q. So was it those two facts that caused you to say, "Wait a minute. If that's the way it happened, she would have had to have reached across the passenger side, through the window, and grabbed you"?
A. Yes.
Q. Okay. So you were somewhat incredulous?
MS. LEONIDA: Objection. Leading.
THE COURT: Sustained.
MR. JEWETT: Q. Did I understand you to say you were somewhat incredulous at this story?
A. Yes.
Q. So what did you say?
A. What I just said.
Q. Okay.
A. Okay.
Q. And then what did he say?
A. I know it sounds strange, but that's what happened. My wife -- and I may have the sequence off a little here -- but my wife asked him to describe the driver. And the description, I believe, was an average height woman, she was middle aged, about our age.
Q. How old are you?
A. I'm 46.
Q. Go ahead.
A. Pam looked young for her age. Anyway, he described her hair and said she had round glasses. Pam had round glasses. When he mentioned the glasses, my wife looked at me.
MS. LEONIDA: Objection. Narrative.
THE COURT: Sustained.
MR. JEWETT: Q. When he mentioned the glasses, what happened then?
A. My wife looked at me, that look that there was immediate recognition -- I understood that she recognized that to be Pam, without her saying anything. I said authoritatively, "No, there is no" -- I said, "Pam was found in her panties and a T-shirt. There's no way that she was out and about that morning."
Q. And how did he respond to that?
A. I don't recall a response.
Q. What do you recall next being said by anybody in that room?
A. I believe I turned away. I was a bit frustrated. I had intended to talk to him about the credit card issue and this was clearly turning towards murder investigation, which I didn't think was even worth the time at this point. Then there was a pause and he asked, "What if my DNA is there?" And I --
Q. You said --
A. -- I didn't say anything. I was stunned. I wasn't looking at him when he asked, but my perception was that the question was addressed to me. I did not respond. I was thinking about -- my initial thoughts was, "Did he really say what I just think he said"? And my wife started, I think, she was questioning him further; but I was --
MS. LEONIDA: Objection. Narrative.
THE COURT: Sustained.
MR. JEWETT: Q. You believe that your wife was questioning him further. And what happened then?
A. Well, my focus was not on the questioning, but in my mind running through the implications of that statement.
Q. So what happened then?
A. I think my wife asked him about the clothes he was wearing the morning of October 15. I don't clearly recall her asking him, but I do recall clearly his response. He was up straight and positive and he said -- he pointed up was going like that as if he was at attention and said, "They are upstairs, you can have them, they still haven't been washed." He said that in a rapid fire cadence. And we looked at him and he seemed positive or upbeat and he had seemed before this, he had seemed worried, concerned, anxious. And he said it in such a positive tone that I was convinced that there would be nothing on those clothes.
Q. Let me ask you, let me just make a little aside here. Does the Curiel residence have a washer and dryer?
A. Yes, it does.
Q. Do you always use the dryer after the clothes were washed?
A. No, I did not.
Q. At least on sunny days, you usually dry your clothes?
A. Yes.
Q. And what is that?
A. They are hung on a clothesline that is accessible from the porch.
Q. And is that the way you usually dry your clothes?
A. I believe that is how my wife usually dries the clothes.
Q. Okay. So why do you have a dryer?
A. There are rainy days.
Q. Okay. You talked about the clothes. He points or stands at attention and makes the statement. What happens then?
A. I believe my wife asked him if he -- and again I may have some of this out of sequence -- but she asked him if he tried to ascertain whether or not he knew or would recognize the neighbors, specifically Karen Schneider or Pamela Vitale.
Q. And what did he say?
A. He -- he did not. I don't recall exactly what he said, because I don't recall the exact questions; but there were several questions from her trying to identify if he knew them, and he did not.
Q. So whatever the words were, did Scott communicate to you that he did not know what either Pamela Vitale or Karen Schneider looked like?
A. Yes. That's correct.
Q. Okay.
A. Okay.
Q. What else do you recall?
A. At that point, I went to the Linux computer on my desk and I did a Google search. I believe I put in two terms and it was probably Vitale and Horowitz. It was definitely using Firefox. And from the search there had been something on the web which I had seen, which had a photograph or a digital representation of Pamela, I believe, a driver's license picture. I tried to locate that on a couple of the links and gave up and moved aside. At that point, he asked again, "What if my DNA is there?"
Q. And how did you respond to that?
A. I said, "Don't worry. If you weren't there, then your DNA won't be there."
Q. And what did he say in response to that?
A. "But what if it is there"? And I said, "Well, that would mean you were there and that would mean you are going to do time."
Q. And what else do you recall about that conversation, if anything?
A. I don't really recall anything more.
Q. The next day, I believe, if you said this morning that you only talked to him once on Tuesday, is that true?
A. That is what I said? If that is what I said, that is not correct.
Q. Okay. When else did you talk to him?
A. There was a meeting at a lawyer's office.
Q. Okay. Let me just back you up. Would it be fair to say the adults in the household talked about the subject of the potential legal issues, being implicated by what was going on? That's a yes or no question.
A. (No response.)
Q. Did any of the adults, including Esther, talk about potential legal issues that might be raised by, for instance, the credit card fraud?
A. Yes.
Q. Okay. And so I'm just going to move past the area you just referred to. Was there a time after that when you again spoke to Scott at your home about anything dealing with this issue of either credit card fraud or the murder of Pamela Vitale?
A. No.
Q. Did you see Scott on Wednesday?
A. No.
Q. Was Tuesday the last time you saw Scott before he was arrested?
A. No.
Q. When did you next see him?
A. I saw him that evening.
Q. Tuesday evening?
A. Yes --
Q. Okay. But you -- okay.
A. -- it was.
Q. You saw him, but you didn't talk to him?
A. I did briefly.
Q. And what did you talk about?
A. I said, "Don't worry, it can't get any worse than this."
Q. And did he respond to that at all?
A. No.
Q. And was there anything else said that you recall between yourself and Scott that Tuesday evening?
A. No.
Q. And I think you just said you did not see him on Wednesday; is that true?
A. That's correct.
Q. So that Tuesday evening was that the last time you saw Scott --
A. It was.
Q. -- before he was arrested? And the Scott that we have been talking about, do you see him in the courtroom today?
A. Yes.
Q. Would you point him out, please, and describe what he's wearing for the record?
A. He's in a blue shirt with a tie.
THE COURT: The record should reflect he's identified the defendant.
MR. JEWETT: Q. Now, Mr. Curiel, do you recall a day in January of this year when your brother, David, called something to your attention?
A. Yes, I do.
Q. And describe the circumstances of that, please.
A. It was a Saturday morning, I believe, January 27, it was between 10:30 and 11:00, my wife and kids were gone, David and myself were the only ones in the house. David was on the balcony, on the east end of the balcony, and I was in the living room on the couch facing south.
Q. Are you talking about a balcony that's inside the house overlooking the family area downstairs?
A. Yes, I am.
Q. Okay. Go ahead.
A. Ah, I was laying on the couch reading an article in Discover magazine on the competing designs for the Magellan, the Magellan telescope. The Oakland A's had recently signed Frank Thomas and my brother David was upstairs creating projections or projecting what his offensive productivity would do for the --
Q. David is a big A's fan?
A. Yes, he is.
Q. Okay.
A. He was babbling on about his numbers, his projections, and he asked me --
MS. LEONIDA: Objection. Narrative.
THE COURT: Sustained.
MR. JEWETT: Q. What did David ask you?
MS. LEONIDA: Objection. Calls for hearsay.
MR. JEWETT: It's --
THE COURT: Overruled.
THE WITNESS: He specifically asked me how many plate appearances I thought that Frank Thomas would get. And I said, "500." And he said, Keep in mind" --
MS. LEONIDA: Objection. Narrative, hearsay, and relevance.
THE COURT: Sustained.
MR. JEWETT: Q. All right. You and your brother had a, it sounds like, a fairly detailed conversation about the capabilities of Frank Thomas?
A. Yeah.
Q. Are you an A's fan?
A. Yes, I am.
MS. LEONIDA: Objection. Relevance.
THE COURT: Overruled.
MR. JEWETT: Q. And so at some point during this conversation, what happened?
A. Well, I suggested to him -- I told him that I had looked at Frank Thomas' career. I told him he probably would have a couple of good years, followed by an off year. I asked him to rerun his --
MS. LEONIDA: Objection. Narrative, hearsay, and relevance.
THE COURT: Sustained.
MR. JEWETT: Q. Okay. Well, what did you ask him to do?
A. I asked him to rerun his projections focusing on the good years and second projection focusing on the off years, and extrapolating those to come up with a variance of what could be expected to give you the midpoint which is between the high and low.
Q. Okay.
A. At that point he -- you know, during this entire conversation I could not see him, but I can easily hear him. We're talking and I'm reading. I then went into the master bedroom. And at that point he screamed out my name with such a sense of urgency, the volume was louder and there was a sense of urgency like something was wrong. And I bolted from across my room out to the living room. He was coming downstairs and said --
MS. LEONIDA: Objection. Hearsay.
THE COURT: Overruled.
MR. JEWETT: Q. Before we get to what he might have, at least your observations, what your observations of him were when you were talking to him about Frank Thomas and the projections and running projections, do you know how he was doing that, whether he was using a computer or whether he would be writing things out on a piece of paper?
A. I did not see him, but I can tell you how he typically does it.
Q. Go ahead.
A. Okay. On the east end of the balcony, he would have been sitting in front of a computer.
Q. Uh-huh.
A. But he typically has paper and a calculator that he will use for whatever reason instead of using a computer.
Q. And what kinds of paper are kind of sitting around there for him to use, are we talking about, you know, 8 1/2 X 14 like what I am holding up, is there a scratch paper that's smaller?
A. I have a supply of paper pads that are made by a good friend who is a printer, and because he makes these out of recycled scraps from his work they are of a nonstandard size, they tend to be nonstandard sizes, and that's what would probably have been available --
Q. Okay.
A. -- to him.
Q. So he yells out with a sense of urgency. And what happens then?
A. I bolt out to the living room, he's coming down the stairs quickly, and as he's coming toward me and he says --
MS. LEONIDA: Objection. Hearsay.
THE COURT: Overruled.
MR. JEWETT: Q. He says ....
A. He said, "You better have a look at this." And at this point, my thought was Frank Thomas' numbers can't be that exciting. I understood it, but there didn't seem to be the image that I anticipated. I sat down on the couch and as I did he tossed the four sheets of paper in my lap and I began looking at them. They --
THE COURT: Ask another question, sir.
MR. JEWETT: Q. Are you sure there were four?
A. I believe there were four.
Q. Before I show you those pieces paper, can you please describe for us -- well, did you look at those pieces of paper?
A. Yes, I did.
Q. Could you describe for us what you saw on these pieces of paper?
A. There was detailed account and password and access codes that appeared to be for our neighbor. There was also, I believe, other personal information that would not be public information.
Q. What kinds of information are you talking about?
MS. LEONIDA: Objection. Foundation.
MR. JEWETT: Q. Did you read the pieces of paper?
THE WITNESS: Yes, I did.
MR. JEWETT: Q. What kind of information was on it?
A. There were numbers, what appeared to be a social security number, I believe, a birth date, and there may have been -- there were account, there was account information, PIN's and passwords.
Q. Did you see anything else, other than that kind of information on any of the slips of paper?
A. Yes, I did.
Q. What did you see?
A. There was what appeared to be something of a "to do" list.
Q. Showing you what's been marked as People's Exhibit 28. I believe I already asked to approach.
THE COURT: Yes, you did.
MR. JEWETT: Q. I'm going to go ahead and remove the contents from a clear plastic bag and show them to you. Do you recognize those?
A. Yes. They -- yes.
Q. How many of them are there?
A. There are five.
Q. Okay. Do you recognize the handwriting on them?
A. No, I don't.
Q. Okay. Are you familiar with Scott's handwriting?
A. Not really.
Q. When you read these, did you handle them?
A. Yes, I did.
Q. And after you read them, what did you do with them?
A. What did I do with them?
Q. What if anything did you do with them? Yeah.
A. My brother walked over across to the kitchen, pulled out a Ziploc bag, and said something about Rancho Curiel CSI, and he walked back, opened it and I put the papers in the bag, in the Ziploc bag.
Q. And was that a Ziploc bag of a similar size that I just removed them from?
A. Quite possibly, yes. Yes.
Q. Okay.
Now, you said when I was asking you about this that this was Saturday, January 27, this happened; is that right?
A. Yes, I believe so.
Q. Let me ask you, do you remember having a party at all that weekend --
A. Yes.
Q. -- for David?
A. Yes. I don't know that I would say that it was for David; but, yes.
Q. Where he had a blind date?
MS. LEONIDA: Objection. Relevance, leading.
THE COURT: Overruled.
MR. JEWETT: Q. Did he have a blind date?
A. Yes.
Q. Do you remember what day of the week that party was?
A. It was the -- no, I don't. It was --
Q. That's okay if you don't remember.
A. I think it would have been either a Friday or a Saturday.
Q. Do you recall whether or not this event that you just described for us, when David found these slips of paper, was before or after?
A. It was after. It was the day after, the morning after the party.
Q. The slips of paper that you just identified, how did the sizes of those slips of paper compare to the kind of nonstandard sizes of paper pads that you have from your friend who recycles?
A. These appear to be from those pads. My recollection is these sheets were not all of the same size and they were not all from the same pad.
Q. And can we assume from that that you have noticed there's actually two separate sizes --
A. Yes.
Q. -- among these five --
A. Yes.
Q. -- slips of paper? And are the sizes of the -- are the two sizes represented in those five slips of paper, both sizes of paper pads that you had in your house --
A. Yes.
Q. -- in October?
A. Yes, they would be consistent.
Q. Thank you. Let's go ahead and put these back in the plastic bag, if we may. Now, Mr. Curiel, there is one other area I would like to cover with you and I want to go back to your statements to the sheriff's office on October 20. Did you have a conversation with them about when you saw Scott Saturday morning?
A. Yes. Yes, we did.
Q. And in that conversation, did you give them a very specific time that you saw Scott that Saturday morning?
A. Yes, I did.
Q. And what was that time?
A. 9:26 a.m.
Q. And did the officers ask you specific questions about how Scott appeared when you saw him at what you were describing as 9:26?
A. Yes, I did.
Q. And in those descriptions, did you ever give the police or anybody else any indication that when you saw Scott, at what you said was 9:26, he had any injuries to his body and specifically a bleeding wound to his face?
A. No, I did not.
Q. Did you tell those police officers, specifically that you did not see any injuries to his body, his face, or any blood on his clothing?
A. I believe I did.
Q. Now, yesterday, I asked you a question about whether or not you have a clear recollection of seeing Scott that morning. Do you remember that question?
A. Yes.
Q. Do you have a clear recollection of seeing Scott, whether or not he had blood on his face at 9:26?
A. No, I don't.
Q. Would you please describe for us why it is that -- if you have an explanation -- you were able to tell the detectives on October 20, that you saw him at 9:26, but now you are not sure?
A. I don't have an explanation other than my memory is not -- I don't have an explanation.
Q. Has anybody in -- and I'll start with me. Have I put any pressure on you to get you to change your recollections with respect to 9:26?
A. I don't believe so.
Q. Has anybody, a police officer or any citizen, has anybody put any kind of pressure on you to get you to change what you think you remember?
A. I don't believe so. I mean, people have questioned me and --
Q. When you say "people," who are you referring to?
A. The Santiago brothers questioned me. They didn't seem to believe me and asked me repeatedly, but I would not call that pressure.
Q. Are you talking about the two deputy sheriffs who were interviewing you on October 20?
A. Yes, I am.
Q. And one of them was Deputy Lance Santiago. You don't know his first name?
A. I recall the last name, but not the first name.
Q. I asked you yesterday about whether you had any recollections about seeing Kim on the couch. Do you recall that?
A. Yes, I do.
Q. And you described for us something that you apparently do remember, which is you're trying to push her and she kind of gives you a "cool your jets" response?
A. Yes.
Q. Do you have any recollection of at that time, during that brief exchange before you turned away and I think you said you didn't hear what else she said, do you have any recollection of Scott being on the couch at that time?
A. Not that I am comfortable with. I mean, after, after. Okay. You asked for an explanation. The only thing I could possibly think of is before at some point I may have asked him if he was there.
Q. Okay. Let me follow up on that. When you say you asked Kim --
A. I may have asked Kim, yes. I know that I did ask Kim, but I'm not certain if that was before Wednesday. I know I asked her after Wednesday.
Q. All right. I just want to make sure we understand this. Are you saying that maybe before, but definitely after the Wednesday that you were interviewed by the sheriff's office, you asked Kim if Scott was on the couch?
A. Yes.
Q. Can we assume from the fact that you remember asking that question, that you do not recall Scott on the couch?
A. I think that's a reasonable conclusion.
MR. JEWETT: Thank you, Mr. Curiel. That's all I have, Your Honor.
THE COURT: Cross?
CROSS-EXAMINATION
MS. LEONIDA: Q. Do you remember it being 9:26, on Saturday morning?
A. Yes, I do.
Q. Do you remember talking to your wife around 9:26, on Saturday morning?
A. Yes, I do.
Q. How long after that did you leave the house?
A. At about, about an hour after that.
Q. You been asked numerous times about seeing Scott on Saturday morning --
A. That's correct.
Q. -- is that true? You were asked by the Santiago brothers, of the police department?
A. Yes, I was.
Q. You were asked by my investigator?
A. Yes, I was.
Q. You were asked by Mr. Jewett?
A. Yes, I was.
Q. You testified about it?
A. Yes.
MS. LEONIDA: Your Honor, may I have the television back?
THE COURT: Sure. It will just take us a few minutes, Ms. Leonida, can you go on to some other area?
MS. LEONIDA: I could. Actually, I'm wondering if we should take a break to -- should we approach?
THE COURT: Is this the same problem as yesterday?
MS. LEONIDA: No. I have an excerpt, but I don't know if Mr. Jewett would like to see it first.
THE COURT: Oh.
MR. JEWETT: We can approach and counsel can just tell me what the excerpt is.
THE COURT: Okay. Why doesn't the jury feel free to get up and take a stretch, please.
(Bench conference, unreported.)
THE COURT: Ms. Leonida, you can have it marked.
MS. LEONIDA: I did have it marked.
(Interview of Fred Curiel being played at this time.)
MS. LEONIDA: Q. Mr. Curiel, was that you on the tape?
A. I believe it was.
Q. And that was a tape of your interview with the police officers?
A. Yes, it was. I believe it was.
Q. On October 20?
A. Yes, I believe it was.
Q. And that was before you ever talked to my investigator; correct?
A. The defense investigator?
Q. Yes.
A. Yes.
Q. That was before you had ever talked to Mr. Jewett?
A. Yes.
Q. That was in fact before you knew for sure that Scott was even arrested, wasn't it?
A. Yes.
Q. During the course of that interview, you initially said first that interview was in the early hours of the morning?
A. Yes, it was.
Q. And around 2:30 in the morning, you said that you saw Scott at 9:26; right?
A. I believe I did.
Q. On the excerpt of the interview that we just saw, you talked about seeing Scott at 9:26; correct?
A. I think that's what I had seen. It was a little bit difficult to understand.
Q. Well, let's go back over it. The police officers asked you when was the first time you saw him on Saturday; is that right?
A. I couldn't understand what he was saying, but that's probably correct.
Q. Do you remember being asked that question?
A. I'm certain I was asked that question.
Q. And do you remember your response being, "At 9:26, I came out to try to get people to, I mean, I had been up before that, I was sort of trying to get people moving and we had plans." You said that; right?
A. I believe I said that, yes.
Q. You were asked how you remembered 9:26, specifically?
A. Yes, I was. I do recall that.
Q. And you made a reference to looking at your pager?
A. Yes, I believe so.
Q. Later in the interview you were asked to describe Scott at 9:26. Do you remember that?
A. No, I don't vividly recall it.
Q. Do you think it might refresh your recollection to look at a transcript of that interview?
A. Yes, I think that might be useful.
MS. LEONIDA: May I approach?
THE COURT: Yes, ma'am.
MS. LEONIDA: I'm sorry. Did you want to see it?
MR. JEWETT: I have got one. Thank you.
THE WITNESS: Is there a specific line you'd like me to start at?
MS. LEONIDA: Q. If you could start at the top and read to the end of the highlighted portions.
A. (Witness reviewing exhibit.) Okay.
Q. Does that refresh your recollection?
A. Yes. But there's one thing in there, though, that doesn't, that seems out of place, a reference to a bike. I have no recollection of that. That doesn't seem --
Q. Okay.
A. -- that seems out of place.
Q. Well, let me ask you the area that I have questions about and then if something was in here that is out of place, you can let me know, but I suspect that it may have nothing to do with what I am interested in.
A. Okay. That's fine.
Q. So the police asked you to describe how Scott appeared when you saw him at 9:26?
A. Yes.
Q. And they asked you if he was upset, didn't they?
A. Ah, yes.
Q. And you said, "No"?
A. Ah, yes.
Q. You did not say in response to that question, "I'm not sure if I even saw him," did you?
A. No, I did not.
Q. They asked you if he was sweaty; correct?
A. Yes.
Q. And you said, "No"?
A. That's correct.
Q. You did not say, "I'm not sure. I may not have seen him, did you"?
A. That's correct.
Q. They asked if he had blood on his clothing --
A. Yes, they did.
Q. -- didn't they? And you said, "I didn't see any. I didn't see anything, but I'm not an overly observant person.
A. Excuse me. Overly observant. But, yes.
Q. You did not say in response to that question, "I didn't see anything. In fact, I'm not even sure if I saw him at all"?
A. That's correct. I didn't say that, at that time.
Q. You didn't say that at any time prior to talking to Mr. Jewett at lunch yesterday, did you?
A. I don't recall saying that to anyone.
Q. Did you say it to the police?
A. No, I didn't.
Q. Did you say it to me?
A. No, I did not.
Q. Did you say it to my investigator?
A. No, I did not.
Q. Did you say it at the preliminary hearing?
A. No, I did not.
Q. You said it to him yesterday?
A. That's correct.
Q. Later in the interview you talked about whether Scott had already taken a shower at 9:26; correct?
A. I believe so.
Q. Again, at that point, you did not say, you know, "I'm not even sure if I saw him that day." You answered no questions about it; is that correct?
A. That's correct.
Q. Later still the police asked you if the topic of washing clothing came up at 9:26, didn't they?
A. They may have.
Q. And again in response to that you said, "No, that didn't come up then"; but you did not say, you know, "I'm not sure if I saw him"?
A. That's correct.
Q. During the entire course of your many hours of interviewing at the police department you never once said, "I'm not sure if I saw Scott on Saturday," did you?
A. I believe that would be correct.
Q. And, in fact, you repeated several times that you saw him at 9:26?
A. I believe I did.
Q. And again that was before you ever talked to a defense investigator, wasn't it?
A. That is.
Q. It was October 20?
A. It was.
Q. Five days after the Saturday, you were describing?
A. That's correct.
Q. And you were sure?
A. At that time.
Q. You also testified at the preliminary hearing in this case, in February; is that right?
A. Yes, I did.
Q. You were under oath?
A. I was.
Q. The same oath you took yesterday?
A. I believe so.
Q. Did you lie at the preliminary hearing?
A. Could you define "lie" for me?
Q. Did you intentionally say something at the preliminary hearing that was not true?
A. No, I did not.
Q. From page 390, line 17, through 391, line 14.
MR. JEWETT: What is counsel --
THE COURT: Are you going to be reading this or showing it to the witness?
MS. LEONIDA: Reading it.
THE COURT: Just give me one second, please.
MR. JEWETT: How about line 16 on page 391?
MS. LEONIDA: Fine.
MR. JEWETT: Thank you.
MS. LEONIDA: I'll go to 21.
THE COURT: What lines are you going to start on?
MS. LEONIDA: Line 390, line 17.
THE COURT: Okay. Just give me a second. Through ....
MS. LEONIDA: Through 391, line 21.
THE COURT: Proceed.
MS. LEONIDA: Q. At the preliminary hearing, you were testifying truthfully?
A. Ah, the definitions that I believe are correct. My testimony was not entirely truthful.
Q. What did you lie about, Mr. Curiel?
MR. JEWETT: Objection. Argumentative.
THE COURT: Sustained.
THE WITNESS: I want to point out --
THE COURT: Excuse me. You have to ask another question.
MS. LEONIDA: Okay.
THE COURT: The objection is sustained. Rephrase, please.
MS. LEONIDA: Q. At the preliminary hearing you were asked at some point that morning, "Did you see Scott come home?" And you responded, "No, I didn't." Correct?
A. Could you repeat that?
Q. At the preliminary hearing you were asked at some point that morning, "Did you see Scott come home?" And your answer was, "No, I didn't." Correct?
A. That is correct.
Q. The next question was, "Did you see Scott at all the morning of October 15?" And your answer was, "Yes, I did." Correct?
A. I believe that would be.
Q. That's what you said, isn't it, Mr. Curiel?
A. I believe that's what I said.
Q. Under oath?
A. Yes.
Q. And you were in fact careful to make a distinction, because you didn't remember seeing him walk in the door, as opposed to you did remember seeing him at the house; correct?
A. That's correct.
Q. The next question, "What time did you first see him?" Answer, "9:26." Question, "a.m."? Answer, "a.m." Do you remember that?
A. Yes.
Q. The next question, "How can you be sure it was 9:26 exactly?" Answer, "I checked my pager just before coming out into the living room."
A. That's correct.
Q. Question, "Why would you do that?" Answer, "Because I was concerned about the time." Question, "Why were you concerned about the time?" Answer, "I had things I wanted to get to do, I knew my wife had a list of things she wanted to do that day, and I was concerned that some of my priorities would not -- might not happen because if we didn't, if we didn't get started." You said that?
A. Yes, I did.
Q. Question, "When you looked at your pager, was it just to see what time it was, did it have anything to do with Scott?" Answer, "No, it was just to check the time."
A. That's correct.
Q. Question, "Where was Scott when you saw him at 9:26?" Answer, "He was on a couch in our living room next to my wife." Question, "Did they appear to be having a conversation?" Answer, "No, no." Question, "What was your wife doing?" "She was correcting papers." You said that?
A. Yes, I did.
Q. Question, "How long did you see him there?" Answer, "Just briefly. I didn't actually focus on him, just briefly." You said that?
A. (Witness nodded head affirmatively.)
THE COURT: You have to answer out loud, sir.
THE WITNESS: I believe I did.
MS. LEONIDA: Q. You never said, during the course of your entire testimony at the preliminary hearing, that in fact you weren't sure if you saw him at all, did you?
A. No, I did not.
Q. Again, the first time you said that was when you were talking to Mr. Jewett yesterday?
A. I believe so.
Q. You also testified -- let me back up. When you were interviewed by the police, I think you said you answered a series of questions that Scott wasn't sweaty, you didn't see blood on his clothes. Do you remember that?
A. Yes.
Q. And again that was before you ever had any contact with the defense investigator?
A. That's correct.
Q. Before you had ever talked to me?
A. Correct.
Q. Before you had ever talked to Mr. Jewett?
A. Correct.
Q. Five days after Saturday, yes?
A. Correct.
Q. You were asked those similar questions at the preliminary hearing in February; right?
A. That's correct.
MS. LEONIDA: Page 397, lines 15 to 28.
THE COURT: Proceed.
MS. LEONIDA: Q. At the preliminary hearing you were asked -- moving back to October 15, that Saturday morning -- question, "When you saw Scott, did he appear to you to be upset?" Answer, "No." You said that?
A. I believe I did.
Q. Under oath?
A. Yes.
Q. You did not say, "I'm not sure, I may not have seen him," did you?
A. I don't believe I did.
Q. Question, "Did he appear as if he was sweating?" Answer, "No." Question, "Were his clothes wet?" Answer, "No." Question, "Did you notice if his hair was wet?" Answer, "No, I didn't notice." Question, "Did you see any blood on his clothing?" Answer, "No, I did not." You said that?
A. Is that a question?
Q. That is a question. You said that, Mr. Curiel?
A. I believe I did.
Q. Under oath?
A. Yes.
Q. Never once interrupting anyone to say, you know, "I'm not sure if I saw him at all that morning"?
MR. JEWETT: Objection. Argumentative.
THE COURT: Sustained as to the form.
MS. LEONIDA: Q. During the course of the preliminary hearing, when you testified at some length about seeing Scott Saturday morning, you never told anybody that you weren't sure if you even saw him, did you?
A. That's correct.
Q. When you did talk to Ed Stein, the defense investigator, did he tell you to change your testimony in any way?
A. No, he did not.
Q. He asked you questions?
A. Yes, he did.
Q. And you answered those questions?
A. Yes, I did.
Q. And you did that voluntarily?
A. Yes, I did.
Q. Did Ed Stein threaten you?
A. I don't recall being threatened.
Q. Ed Stein didn't tell you what to say?
A. No, he did not tell me what to say.
Q. He asked what your recollections were?
A. Yes, he did.
Q. You also discussed with the police officers, the Santiago brothers, what time you left the house Saturday morning; is that right?
A. Yes, I did.
Q. You told them that after seeing Scott at 9:26, that you stayed home until 10:20; is that right?
A. My recollection is they asked me what time I left the house, and I told them 10:20.
Q. Saturday morning?
A. Or about 10:20, yes.
Q. And again you told them you left the house at 10:20, on Saturday morning, before you ever talked to me, yes?
A. Yes.
Q. Before you ever talked to a defense investigator?
A. Yes.
Q. Before you ever talked to Mr. Jewett?
A. Yes.
Q. Five days after the day they were asking you about; correct?
A. Correct.
Q. You said you left the house at 10:20 --
A. Yes.
Q. -- with your family?
A. No. Okay. And here's where we need to get into the pedantic nature. I left the house at about 10:20, and I waited in the car -- talking about when I left with my family, when we departed the property, which is a different thing, that is, slightly later. That is later.
Q. How long did it take your family to get in the car with you?
A. By my estimation, six to seven minutes, on my perception of time.
Q. Would it be fair to say that you pay attention to time?
A. When I am concerned about time, yes.
Q. And you were concerned about time on Saturday morning, October 15?
A. Yes, I was.
Q. Which is why you can now say that it took your family about six minutes to get in the car?
A. Yes.
Q. So you left with your family at around 10:26?
A. 10:26, 10:27, yes.
Q. You told that to the police in October?
A. No. They didn't ask me what time we departed the property. They asked me what time I left the house --
Q. Okay.
A. -- and I told them 10:20.
Q. Okay.
A. That's my recollection.
Q. You testified at the preliminary hearing in this case about that too; correct?
A. Quite possibly.
MS. LEONIDA: Page 403, line 27 to page 404, line 5.
THE COURT: You can't start with an answer.
MS. LEONIDA: Oh, I'm sorry. Line 25. I misspoke.
THE COURT: Okay. Proceed.
MS. LEONIDA: Q. At the preliminary hearing, you were asked, after you saw Scott at 9:26 on Saturday, what did you do, how long were you in the house? Your response, "I was in the, I was in the living room briefly, I was trying to get people to get the kids excited about going, departing, and my wife made it clear that we would not be departing until she had finished reading her papers." Question, "How long did that take?" Answer, "I think it took about 40 minutes. We left at about 10:20." You said that?
A. I don't recall, but it sounds like something I might have said.
Q. And as you sit here today, do you remember leaving the house at 10:20 and leaving the property around 10:26?
A. Yes.
Q. And, again, did a defense investigator tell you to say that?
A. No.
Q. You started saying that on October 20; correct?
A. Yes.
Q. That's the first time you were asked?
A. Yes.
Q. You made a reference yesterday, too, at some point in February, realizing that a time estimate was off about how long you had been in a store. Do you remember that?
A. Yes, I did.
Q. Do you remember ever telling anybody prior to then how long you had been in the Spirit Store?
A. Yes, I do.
Q. Who did you tell?
A. I believe Lance Santiago and his brother.
Q. When you realized, in February, that that might have been mistaken, that estimate, who was with you?
A. Ah, my wife would have been the -- my wife.
Q. Was a defense investigator there when this came to you?
A. No.
Q. Was I there?
A. No.
Q. When you realized that you made a mistake, did you make any effort to rectify it?
A. Yes, I did.
Q. What did you do?
A. I called the district attorney's office.
Q. Did you speak to somebody there?
A. Yes, I did.
Q. Who did you speak to?
A. I spoke to Hal Jewett.
Q. What did you tell Mr. Jewett?
A. That I had a list of things that I was concerned about, things that I hadn't been asked about. And he heard me out on a couple of them; but he was concerned about me being involved, involving myself in the investigation and strongly cautioned me from doing anything more. And that seemed a very reasonable thing for him to do in light of what I perceived to be what I perceived would be the defense strategy from the preliminary hearing.
Q. So let me break this down a little. You realized you had made a mistake about the time estimate?
A. And a number of other things that I wanted to clarify.
Q. Okay. I'm asking you specifically about the time.
A. Yes.
Q. You realized that in February?
A. Yes.
Q. You realized it by yourself, meaning not with any participants in this trial around you?
A. Yes.
Q. And when you realized it, it wasn't in response to something that my defense investigator had said to you the day before that?
A. That's correct.
Q. On your own, you realized this?
A. Yes.
Q. When you do realize it, you call Mr. Jewett; correct?
A. After, yes.
Q. You didn't call me?
A. No, I did not.
Q. You didn't call a defense investigator?
A. That's correct.
Q. You called Mr. Jewett and told him about your error?
A. No. I don't believe I got to the time error, the timing error. I expressed that I was concerned about the time line; but, again, I don't think we went into detail on it.
Q. Because he said he didn't want you to be involved?
A. Well, that and my perception was that there would be, my perception.
Q. Mr. Curiel, I'm sorry to interrupt. I'm not asking for your perception.
MR. JEWETT: I think the witness should be entitled to explain.
THE COURT: Excuse me. You have an objection, ma'am, that it's nonresponsive.
MS. LEONIDA: Yes.
THE COURT: Okay. That is sustained. Mr. Jewett, you can go back in your examination and clarify it, sir. Proceed.
MS. LEONIDA: Q. After your conversation with Mr. Jewett, you still didn't call me; right?
A. No, I did not.
Q. You didn't call my investigator?
A. No, I did not.
Q. Did you tell anybody about this error in the time line, in February?
A. In February? No. Well, I referenced it in my wife's presence, but I didn't go over the time line that I -- I just mentioned there had to be a mistake.
Q. Now, on July 31, when you talked to Ed Stein --
A. Yes.
Q. -- or the man who told you his name was Ed Stein --
A. Yes.
Q. -- when you talked to that person, did he ask you to change what you had been saying?
A. No.
Q. Did he tell you what to say?
A. No.
Q. Did he tell you, you were wrong about anything?
A. No.
Q. Did he tell you what the district attorney had said in his opening statement?
A. Yes, he did. And based on Hal's reaction, I believe it was probably accurate.
Q. Did you happen to catch that opening statement on television?
A. No, I did not.
Q. As he was telling you what Mr. Jewett had said, did you interrupt him to say there's been an error?
A. I may have. Yes, I may have.
Q. At that point, had Ed Stein said anything about your estimates of time that you were at The Dollar store?
A. I'm sorry?
Q. At the time that you may have interrupted him to say that there was an error, had Ed Stein started asking you specific questions about how long you were at The Dollar store --
A. No.
Q. -- or at the Spirit Store?
A. No, I did not.
Q. Is that information that you volunteered?
A. Yes, it was.
Q. Did Ed Stein encourage you to change that information in any way?
A. No, he did not.
Q. He just asked you questions?
A. He asked me -- would you like to hear what he asked me? He asked me, he made a statement.
Q. Well, let me go through it piece by piece.
A. Okay. Go ahead.
Q. He did ask you questions?
A. He did ask me questions.
Q. He did not tell you what to say?
A. He did not tell me what to say. That's correct.
Q. After he told you what Mr. Jewett had said in his opening statement, is it true that he continued the interaction you had after, that was Ed Stein asking you questions, and you answering them?
A. Yes.
Q. Mr. Curiel, I want to be really clear on this. You had not spoken to Ed Stein, or to me, prior to October 20; correct?
A. That's correct.
Q. You had not spoken to Ed Stein, or myself, before telling the police, on October 20, that Scott came in at 9:26; correct?
A. That's correct.
MR. JEWETT: Objection. Misstates the testimony that Scott came --
THE COURT: Excuse me, sir.
MS. LEONIDA: All right.
THE COURT: You have to rephrase that.
MS. LEONIDA: I misspoke.
Q. You did not speak to Ed Stein, or myself, prior to telling the police that you saw Scott at 9:26 a.m., on Saturday morning, October 15; correct?
A. That's correct.
Q. You did not talk to Ed Stein, or myself, prior to telling the police, on October 20, that you left the house at 10:20 a.m., on October 15; is that correct?
A. That's correct.
Q. And as you sit here today, is it true that you still are maintaining that you left the house at 10:20 a.m., on October 15?
A. That I personally left the house at 10:20 a.m.? Yes.
Q. And that your family got into the car six or seven minutes later and you all left together?
A. Approximately, yes.
Q. Now, I want to ask you questions on a different topic. During the time that Scott and his mother lived with you, at 1050 Hunsaker Canyon Road, did they pay rent?
A. Not that I know of.
Q. Scott had his own room?
A. Yes, he did.
Q. Where did he keep his belongings?
A. Well, some of them, most of them would have been in his room. There were other items which were in a storage unit and there may have been some items around the house.
Q. Where is the storage unit?
A. It's on the property, across from the house.
Q. Is it locked?
A. No, it's not.
Q. Among the items that he kept stored in there, were sporting equipment?
A. Yes.
Q. Old clothing?
A. Yes.
Q. Did you keep an inventory of what he stored in there?
A. No.
Q. Was there any rule about what he could or couldn't store in there?
A. Ah, no, there wasn't. No.
Q. And this was an unlocked storage unit, you said?
A. Yes, it was.
Q. So anybody could walk in and access the items inside it?
A. If they are capable, yes.
Q. Prior to October 15, did you lock your house usually?
A. No, I did not.
Q. Did Scott drive?
A. No, he did not --
Q. Ah --
A. -- not on a regular basis.
Q. -- how did he get places?
A. He typically would ask for rides or he often got rides with Jena, his girlfriend.
Q. Do you know if he had a driver's license?
A. I don't believe he did.
Q. Did he ever borrow your car?
A. No, he never did to my knowledge.
Q. On the Tuesday that you were talking to Scott about the credit card fraud --
A. Yes.
Q. -- you were talking to him with Kim and Esther?
A. Ah, yes.
Q. At that point, you were pretty sure that he had committed the credit card fraud?
A. I was convinced, yes.
Q. And that was based on your having looked at the computer?
A. It was based on what I found on the computer, yes.
Q. In your house, do you have to have the computer -- let me rephrase that. To get on the internet at your house, in October of
10 2005, did you need to physically plug something in to the computer?
A. In October, yes.
Q. And is that part of the reason that you knew that these orders had been placed from your physical house?
A. No. The reason I knew they had been placed from my house was that or at least I was convinced that the IP address on the report matched the external IP address of my router. Although it's unlikely, I had inspected the physical connections coming in junction boxes where it would be convenient to compromise the lines. That's unlikely that someone would do that, but I inspected it and there was nothing to indicate that anyone had. I also inspected my router to see if this was a more likely scenario, that someone could access a computer via the internet. And so I inspected my firewall, the logs and such, and there was nothing to indicate that either that a port had been opened or that the firewall had been compromised in any way. I also contacted my ISP and I spoke with their technical staff to review some of the safeguards they had to prevent IP spoofing and these are all three of these are unlikely scenarios, but I checked them out just so that I was comfortable that this had occurred from within my house.
Q. And did you communicate any of what you just told me to Scott when you were talking to him on either Sunday or Tuesday?
A. He was aware that I had inspected the firewall. I don't know if he was aware that I contacted the ISP or that I inspected the telecom connections.
Q. But you did tell him that you knew it had happened --
A. Yes.
Q. -- from inside the house?
A. Yes. On Sunday, not only did I tell him it was from the house, but that it happened from his computer.
Q. Okay.
THE COURT: Ms. Leonida, let me stop you there, ma'am, I'm starting to go into the jurors' morning recess.
CROSS-EXAMINATION (RESUMED)
MS. LEONIDA: Q. Mr. Curiel, when you were talking to Scott on -- well, let me start with Sunday. You knew that he had committed the credit card fraud; is that true?
A. I was convinced that he had committed the credit card fraud at that point.
Q. You wanted him to admit to it?
A. Yes, I did.
Q. Would it be an accurate statement that lying is a big deal in your house?
A. Yes, it is.
Q. In the days that followed, Sunday, Monday, and Tuesday, you continued to want him to admit to this?
A. Yes, I did. Well, I believed he had done it and I believed he should accept responsibility for his actions.
Q. Was this something that was creating a lot of tension in the house during those days?
A. Yes, in addition to the -- well, the murder and the constant buzz that was around, yes.
Q. What do you mean by the constant buzz?
A. There was media and law enforcement constantly around. The helicopters buzzing over, media coming and asking questions.
Q. So this the three or four days after October 15, were intense for a number of reasons?
A. Ah, yeah, they were stressed. Yes.
Q. When you were talking to Scott on Tuesday, you still wanted him to tell the truth?
A. Yes, I did.
Q. You wanted him to admit that he had done this credit card fraud?
A. Yes, I did.
Q. And in the course of trying to get him to admit that, you said you suggested that there could be a link between the credit card fraud and the murder?
A. Yes, I did. The murder investigation, I think, would be more accurate to say at that time, yes.
Q. Okay. You are the one who said that to Scott?
A. Yes, I did.
Q. And then your wife followed up by saying, "Where were you, did anybody see you," things of that nature?
A. Yes, she did question him along those lines. Yes.
Q. And it was in response to your statements of that line of questioning that he told you this story about the woman in the car?
A. Yes.
Q. Is it also true that you were the first person to mention DNA?
MR. JEWETT: Objection. Calls for speculation or vague as to time.
THE COURT: Sustained.
MS. LEONIDA: Q. That Tuesday -- well, first prior to that conversation that you had on Tuesday with Scott and your wife and Esther, had Scott mentioned DNA?
A. No, no.
Q. During that conversation on Tuesday, isn't it true that you are the first person who mentioned DNA?
A. During that conversation, yes, I believe without a doubt that I am the first person to have mentioned DNA.
Q. Prior to this conversation, had you and Scott talked about DNA generally?
A. No, we had not.
Q. You don't know what his beliefs are about DNA then; correct?
A. That would be accurate.
Q. Accurate?
A. Yes.
Q. And are you aware of Scott's mother having any kind of job that involves DNA?
A. No, I'm not.
Q. Have you ever heard her talk about anything having to do with DNA?
A. Oh, yes, she had a Web site, something about DNA activation.
Q. Do you know the gist of what she said on that Web site?
A. I'm not intimate with it, but it was something about healing.
Q. Something kind of spiritual?
A. I don't know the details of it.
Q. If you remember, was it something about reactivating dormant DNA?
A. I wouldn't be certain. I understood it to be something about healing, a healing process or something.
Q. Anything scientific, as far as you are aware?
A. My recollection is -- well, I wasn't familiar with any scientific studies along those lines and I didn't investigate. It wasn't something I had a particular interest in.
MS. LEONIDA: Nothing further.
REDIRECT EXAMINATION
MR. JEWETT: Q. Mr. Curiel, let me start with yesterday, sir. Did you come into the district attorney's office pursuant to a subpoena yesterday during the lunch hour?
A. Yes, I did.
Q. And did you and I have a conversation?
A. Yes, we did.
Q. And at the beginning of or towards the beginning of that conversation, did you tell me that after the interview of October 20, with the police, you had asked Kim at least two questions you could remember, was Scott on the couch and was he there when you left for the Spirit Store?
A. Ah, yes, I did. I definitely asked her those questions after the 20th.
Q. And did you tell me that yesterday during the lunch hour?
A. Yes, I did.
Q. And was that in response to a question or was that something that you volunteered?
A. I volunteered that.
Q. And then immediately after that did you say this to me, quote, I'm not sure I saw Scott, period, end quote?
A. Yes, I believe I said that.
Q. And again was that something in response to a question that I asked or was that something you volunteered?
A. I believe I volunteered that.
Q. Now, during the course of our conversation were there a few occasions when you were trying to ask me questions and find out information from me about what I believed the evidence in this case was?
A. That sounds -- yes, I believe so.
Q. Well, let me be more specific then. Did you ask me some questions about when I thought Pamela Vitale was killed or what the theory of my case was?
A. Yes, I did.
Q. With respect to -- and was I willing to answer your questions?
A. No, you were not.
Q. Did I tell you, I would answer any questions you had after you testified in this case?
A. Yes, you did.
Q. Was that a similar sentiment that I expressed to you in February, when you contacted our office with these credit card invoices, the e-mail that I showed you yesterday?
A. Yes. I don't believe at that time that you offered to, I don't recall you offering to discuss it after the case at that time; but, yes, that was it, you have been consistent in that.
Q. Okay. You don't remember me telling you that I would tell you anything you wanted to know after you were done being a witness in this case. Do you recall me telling you in February --
A. Ah -- Q. Let me finish my question. -- words to the effect of, "I don't want to tell you anything about what I know or what the evidence is right now"?
A. Yes, you did.
Q. And did I tell you I didn't want to share that information with you?
A. I don't recall your words, but, yes, you did not want to influence me.
Q. Thank you, sir. Now, at the time that you were interviewed by Ed Stein last week, before he asked you any questions about what you remembered, did he tell you what I had said in the opening statement?
A. Yes, he did.
Q. So he gave you information first and then he asked you questions?
A. Yes, he did.
MR. JEWETT: Reading from the preliminary hearing transcript, page 404, lines 19 through 22.
THE COURT: Proceed.
MR. JEWETT: Q. By Mr. Jewett, question, "When you saw Scott that morning, at 10:00 -- at 9:26, did he have any scratches on his face that you saw?" Answer, "I did not notice any scratches on his face, at that time." That was also your testimony at the preliminary hearing, was it not, sir?
A. I believe it was.
Q. Mr. Curiel, you have been thinking a lot about this case between the time that Pamela Vitale was killed and today, have you not?
A. Yes, I have.
Q. And you have actually done a few things; is that also true?
A. That would be correct.
Q. And would one of them be going back to your credit union to research your credit transactions for October 15?
A. Yes, it was.
Q. And let me just revisit People's Exhibit 42 one more time, putting that in front of you. Is it true that the top part of that piece of paper is --
MS. LEONIDA: Objection. Calls for hearsay --
THE COURT: Overruled so far.
MR. JEWETT: Q. -- is an e-mail from you to me?
A. Yes.
MS. LEONIDA: Objection. Calls for hearsay.
THE COURT: Overruled.
MR. JEWETT: Q. The bottom part of that e-mail, is that something that you obtained from your credit union?
A. Yes, it is.
MS. LEONIDA: Objection. Calls for hearsay, move to strike.
THE COURT: Overruled.
MR. JEWETT: Q. How did you get it?
A. I requested it. I called my credit union and I requested it from them.
Q. And did they send it to you in the mail or e-mail?
A. They sent it to me through an e-mail.
Q. Was that for the entire month of October, was it just for the 15th or do you remember?
MS. LEONIDA: Objection. Calls for hearsay.
THE WITNESS: Ah ....
THE COURT: Excuse me. Overruled.
MR. JEWETT: Q. If you remember.
A. I don't recall.
Q. Now, when you requested that, was your request by telephone, was it by e-mail --
A. I communicated with them --
THE COURT: Sir, you need to let him finish the question, sir.
THE WITNESS: Sorry.
MR. JEWETT: Q. How did you make the request?
A. I contacted them via phone and e-mail.
Q. Okay.
Do you have the ability to call up just on your computer and access your statements directly?
A. No, I do not.
Q. Okay. Thank you. Another thing. Well, in addition to calling up your credit account, at some point did you, yourself, with a friend, drive from your home to the Spirit Store specifically for the purpose of calculating how much time it would take?
A. Yes, I did.
Q. When did you do that?
A. I don't recall the date.
Q. Do you recall the month?
A. The first time I investigated this was November 30.
Q. Of ....
A. At that point in time I was timing and my wife driving. She was not driving to the Spirit Store. So I recorded the times and anything that impacted the time, the portion of the route that was common to our driving to the Spirit Store.
Q. Okay.
A. The final portion of that drive to the Spirit Store is what I timed at a later date with a friend, because I had not found an occasion where my wife would actually drive it and I didn't believe that was actually relevant.
Q. Okay. So let me make sure I understand. Did you, at some point, with the intention of doing so, time how long it would take to get from your driveway to some point, like what was it, in Concord?
A. Yes.
Q. And did that timing that you did include actually a three-point turn that you would have to do at your house once you got in your car to get pointed down the driveway and leave?
A. Yes, it did.
Q. And then was it at some later point that you timed with a friend the balance of the trip from wherever it was you stopped with your wife to the Spirit Store?
A. Yes.
Q. And did you specifically note those times?
A. Additionally, in my estimation, the biggest variance in the area was the time spent at stoplights.
Q. Okay.
A. So I specifically spent time at the stoplights with the friend timing each one and, yeah.
Q. And after doing that, did you come up with a time, a total time that it would take driving from your home, including a three-point turn, to the Spirit Store?
A. The focus of the time was to the point at which I recall checking the time on my pager. So it wasn't specifically at least initially to the Spirit Store, but it was very close to it. So you could estimate the time to the Spirit Store based on that.
Q. Okay. So there's a third, so we have three factors here: The time that you were driving with your wife, the time that you were driving with a friend, and then kind of your extrapolation of time from the end of driving with the friend to the Spirit Store; is that right?
A. We timed it to the Spirit Store, we did time it to the Spirit Store.
Q. You did.
A. Ah, yes.
Q. Okay. So when you did that, what was the total amount of time, combining those things, between the three-point turn at the top of your driveway to the Spirit Store?
A. I came out with -- well, to the Spirit Store -- well, I'm certain the time that it was to the point that I had checked the estimated point and I had checked the time and found --October 15 -- that it was 22 minutes. There was an additional stoplight and some travel after that.
Q. Okay. Of ....
A. The bottom line was the estimate would have been about 23, 24 minutes to get to the Spirit Store.
Q. Thank you.
A. And then --
Q. Go ahead.
A. -- that is to the point at which you would turn and into a parking lot which was near the Spirit Store.
Q. Okay. So then presumably we have to add a couple of more minutes to go from that point to actually walking into the store itself?
A. Yes, there was. Anytime the kids and wife go anywhere, it seems like it requires time.
Q. A little more time?
A. Yes.
Q. And you can't just -- if you go and you park and you walk, it's a matter of seconds.
A. But that's not how it works out when you are with them.
Q. With kids?
A. Yes.
Q. And did you take that into account?
A. Yes, I did.
Q. Thank you.
A. That was not -- that's not in the 23, 24 minutes.
Q. So that extra few minutes that we have been talking about --
A. Yeah.
Q. -- that's in addition to that?
A. Yes.
Q. Thank you. Do you know what Scott was studying, say, in the Fall of 2005?
MS. LEONIDA: Objection. Beyond the scope of cross-examination.
THE COURT: Sustained.
MR. JEWETT: Well, I'd like to be heard.
THE COURT: Okay.
(Bench conference, reported.)
MR. JEWETT: Counsel asked questions about DNA and there was a clear suggestion in there that the idea of DNA came from Mr. Curiel on Tuesday. There has been evidence here already about the defendant's interest in and studies of abnormal psychology, including serial killers, and I'm going to ask him -- I would like to ask him whether or not he has any information about whether as a part of defendant's studies the question of DNA, in the context of serial killers, comes up.
THE COURT: Okay. It sounds relevant.
MS. LEONIDA: I'll withdraw my objection.
THE COURT: Okay.
(The following proceedings were held in open court.)
THE COURT: Okay. The objection is overruled. Proceed, sir.
MR. JEWETT: Q. Did you have any conversations with Scott, in the Fall of 2005, about what he was studying?
A. Yes, I did. I had a conversation about school.
Q. Were you aware that he was studying things like abnormal psychology, including the psychology, surrounding various noted serial killers and mass murderers?
A. I knew that he had a class on that, abnormal psychology, yes, and -- yes.
Q. And did you have any conversations with him or do you know whether or not in the context of his class he may have learned something about DNA in the context of mass murderers and serial killers?
A. No, I wouldn't know. No.
Q. Okay. I want to show you some pieces of clothing and see if you recognize any of them. First of all, People's Exhibit 18E. Have you ever seen anything like this before, do you recognize this?
A. Yes, I have seen something like that before. Yes.
Q. Okay. Where?
A. On Scott.
Q. Showing you what's been marked as People's Exhibit 18C. Have you ever seen anything like this before?
A. No, I have not.
Q. People's Exhibit 18B. Have you ever seen anything like this before?
A. Something similar, I believe. Yes.
Q. Where?
A. I thought it was Esther's. I thought Esther had some evening gloves.
Q. Thank you.
A. But I would not -- I couldn't say for certain if that was it.
Q. Okay. Is Esther right outside?
A. She is, I believe.
Q. And "18B." Have you ever seen -- and again ignoring the arrows -- have you ever seen anything like that?
A. No, sir. I have seen black shirts, certainly.
THE COURT: Mr. Jewett. I think you may have misspoken. What's the exhibit number on that?
MR. JEWETT: 18D, as in "dog."
THE COURT: D? Okay.
MR. JEWETT: Q. When you did see it, is there a particular person with whom you associate black shirts?
A. Well, yes, myself and Scott.
Q. You wear black shirts too?
A. Yeah.
Q. Okay. Lastly your -- well, you know a lot about computers; is that true?
A. That would be fair to say.
Q. Have you passed on any of your knowledge about computers to the children in your house?
A. I have.
Q. Does that include your own children?
A. Yes.
Q. Does that also include Scott?
A. I tried.
Q. Okay. What do you mean by that?
A. Well, when I loaded the operating system on his computer I thought he would take an interest, I would have been encouraged by that, and I believe we did it together. But I don't think I -- as I did it I explained things, but I don't think much of it was retained.
Q. All right. Based on what you know about Scott's abilities with computers has he demonstrated, at least to you, an ability to essentially -- and if I am not using the right nomenclature here, correct me -- but back into through firewalls, say, of servers for, say, financial institutions, banks, security?
A. No. I'm sorry. Could you repeat the question, have you completed the question?
Q. I was just saying banks, you know, or financial institutions like a stock brokerage firm, things like that?
A. No. In my estimation, that is well beyond his capabilities.
MR. JEWETT: Thank you, sir. Nother further.
RECROSS-EXAMINATION
MS. LEONIDA: Q. You would agree Scott is capable of reading envelopes?
A. Yes.
Q. And he's capable of finding a bank's Web site on the internet?
A. Yes.
Q. And he's capable of understanding, I guess, that somebody's middle name might be a password?
A. If he knew the middle name, yes.
Q. What time did you leave your house Saturday morning, October 15?
A. I left the house at, you are saying, Saturday, the 15th?
Q. Yes.
8 A. At 10:20.
Q. What time did you leave your driveway?
A. That would be approximately, by my estimation of time, 10:26, 10:27.
Q. And did I hear you just say that you checked your watch or pager at some point before you got to the Spirit Store?
A. Yes, I did.
Q. What time was it then?
A. 10:51.
Q. 10:51?
A. Yes.
Q. Where were you when you looked at your pager and it was 10:51?
A. I believe we were on Willow Pass Road and it was prior to the final stoplight before the Spirit Store. I'm not certain, but I think that is now known as Fry Way. I could be wrong. It was the final stoplight just before -- it was prior to the final stoplight before reaching the Spirit Store.
Q. Why did you look at your pager then?
A. Ah, I had a schedule in my mind and I was estimating as to whether or not how we were doing on this schedule.
Q. So you looked at your pager at 10:51 --
A. Yes.
Q. -- in Concord?
A. Yes.
Q. You estimate that you left your house in Lafayette around 10:27?
A. Based on my perception of time and how long after, after I had previously checked my pager, yes.
Q. Prior to approximately 10:27, when is the last time you checked your pager?
A. 10:16.
Q. Where were you when you checked your pager at 10:16?
A. I was in the master bedroom.
Q. What were you doing?
A. I'm not 100 percent certain. I believe I may have been browsing the internet. If I was, those files are on a computer that was seized on October 20, and there would be time stamps which could be used to determine when I was there, and it would accurately determine that it has to be correct. And if you use those you have to correlate them with entries on a server that I would have gone to, because the clock on that computer was off by approximately 50 minutes. And I say approximately. It was definitely not 50 minutes, but it was approximately.
Q. Okay. The clock on your pager, was that accurate?
A. Yes, it is.
Q. It still is?
A. Yes, it should be.
Q. So you looked at your pager at 10:16. When is the last time that you looked at it before then?
A. 9:26.
Q. Okay. So at 9:26, you look at your pager?
A. (Witness nodded head affirmatively.)
Q. Yes?
A. Yes.
Q. At least on October 20, you were sure that you saw Scott at that time; correct?
A. After that, yes.
Q. After that, but before 10:16?
A. Yes.
Q. Then at 10:16, you look at your pager in your house --
A. Yes.
Q. -- correct?
A. Yes.
Q. Shortly thereafter, you and your family leave the house --
A. Yes.
Q. -- correct? Then when you are in the car with your family, you look at your pager again and it's 10:51?
A. Yes.
Q. That's in Concord?
A. Yes.
Q. Just before you arrive at the Spirit Store?
A. Shortly before arriving at their parking lot, correct.
Q. You are sure about all of these times?
A. Yes.
MS. LEONIDA: Thank you.
THE COURT: Re-redirect?
MR. JEWETT: Just a couple of questions.
REDIRECT EXAMINATION
MR. JEWETT: Q. Mr. Curiel, two questions, sir. Have you told anybody, to your knowledge before this very moment, that you arrived at the Spirit Store at 10:51?
A. I don't believe so. We didn't -- I'm still not telling anyone. I don't recall telling anyone we arrived at the Spirit Store at 10:51.
Q. When you checked your pager when you were approaching the Spirit Store, it was 10:51. Have you ever told anyone that before just right now?
A. Yes, I have.
Q. Who?
A. I believe I told Ed Stein.
Q. Anybody else?
A. Yes. I have some coworkers.
Q. And when did you tell them that?
A. Ah, oh, within the last couple of months.
Q. Okay. The last couple of months. Anybody before that?
A. A friend.
Q. When was that?
A. I don't recall the date.
Q. And have you ever told anybody before yesterday that you saw coyotes up on Mount Diablo, at 16 minutes to 6:00, before yesterday?
A. It was a single coyote.
Q. Have you ever told anybody that you saw a coyote at 16 minutes to 6:00?
A. I believe I said I may have. I may have told that to Ed Stein.
Q. Okay. Anybody else?
A. Not that I recall.
Q. Did you tell Mr. Stein that you then left from watching the coyote at 12 minutes to 6:00?
A. Yes.
Q. Have you told anybody else that before you spoke to Mr. Stein?